The current situation with the NFL is pretty hard to write about as a blogger who daylights as a lawyer. Part of me figures that I should bring my skills of legal analysis to the table, while another part of me is absorbed with my frustration with the situation as a fan, while a third part of me thinks those first two parts are stupid for even thinking I could have anything worth reading on the topic at this point. After all, devoid of contract negotiations, trades and training camp to talk about, ESPN's focus on the NFL, its favorite son, has been almost exclusively focused on the NFL lockout and the legal proceedings surrounding it. Well, even so, I'm going to indulge a few thoughts about what's happened to bring us here, and where I hope to see this thing go when all is said and done.

But, before I really get started, we all could use a little background on this one. Why? Because typical fans don't like thinking about the nitty-gritty of the sports labor issues because (a) they're boring, and (b) they make use furious when we think about the amounts of money involved. I can already feel the hate welling up. THINKING OF MY HAPPY PLACE. THERE IT IS.

The NFL, with roots back to the 1920s, didn't have organized labor until the 1950s. Frankly, I'm surprised it took that long for players to get sick of busting their asses without getting a fair shake from the owners. In 1957, a year after the players union was formed, the Supreme Court decided the case of Radovich v. NFL, wherein it held that antitrust law did, indeed, apply to the NFL, despite the immunity previously granted to Major League Baseball.

[Sidebar: Anyone who wants to make the point about the American justice system being a dysfunctional mess need only refer to the fact that MLB is free of antitrust laws, while ALL OTHER AMERICAN PRO LEAGUES ARE. Why? Because a decision in 1922 by Oliver Wendall Holmes called it "just a game" and unrelated to "production," the thing antitrust law was supposedly concerned with. While I certainly agree that the Mets, for instance, are completely uninterested in producing, I think Justice Holmes's argument needs to be rethought.]

Under the umbrella of antitrust law, certain rules generally apply to the NFL's activities. Now, I reiterate that I generally don't know shit about antitrust laws, but the basics aren't all that complex. As applied to labor - a resource of business - these principles suggest that, just as it is bad (and most often illegal) for companies to band together to fix prices at specifically high rates that are not commiserate with the true market price as set by supply and demand, it is also generally bad for companies to band together and fix wages at artificially low rates that are not in line with the true market rate for such labor. Or, taking the principles even further, antitrust law generally tells us that separate businesses can't band together to create a system that funnels new labor resources and dictates where they can and cannot work.

Wait, but that's exactly what the NFL and every other league in America does, how could that be right? (Not Europe, though; they don't need fairytale concepts of fairness and parity to keep their leagues going. Not good enough? Fuck you then, you're relegated. Maybe next time, try getting some better players and not losing so much).

As you can see, the NFL - as it is currently set up - has found its way out of the scope of antitrust law. But, unlike MLB, the NFL did so through a bargain. A collective bargaining agreement, to be exact, which included - among other things - a basic agreement that the NFLPA would not bring any sort of antitrust litigation during the length of the CBA plus six months. In place of antitrust law, the NFL operates on a set of rules that appears to violate every principle of fair play in the marketplace.I mention this general observation of the NFL to illustrate that the NFL's model of success, built on a business model that blatantly disregards the principles of antitrust law, has been hanging by a contractual thread. The things we like the most about the NFL as fans - the forced parity of the draft or the salary cap, for example - were possible only by virtue of the agreement that the players and owners came to back in the late 80s, and which was extended in 2006. The league, booming since that deal, has opted out of the agreement and, in my view, has done so with an utter disregard for the reality that the presence of a CBA - and the resulting immunity from antitrust restrictions - made the NFL the money-making machine that it is today.

So, yeah, basically FUCK THE OWNERS. It is a shocking move of hubris to ignore the fact that your success, built upon a model of price fixing and collaboration between businesses, is only possible due to a CBA, and then to make the active choice to opt-out of the very thing that makes your business out of the reach of rules that apply to all other businesses.

Beyond that, my liberal brain feels that - valid or not - the owners' points deserve to be shat upon because the Mega-Rich should never be allowed to pretend that a shortage of a few million dollars is putting them in dire straits. I don't care about any arguments about the NFL taking off due to their investment in it, and that fairness dictates that they are entitled to a bigger cut. The NFL is the most popular sport in the country because fans who - in comparison - barely have two pennies to rub together have utterly devoted themselves to the sport. Sponsorship and corporate dollars followed that wave of interest in America's Everyman, and the dollars have been coming in by the bucket-load. The owners got real rich, and now they want to get a little richer. Don't sit there and pretend I should feel sorry for you and your life that all us plebes would fucking kill for. All this talk about how expensive it is to grow the game and how there's a lack of incentives for clubs to invest is asinine. If there wasn't an incentive, how the fuck did this monstrosity get built?

That light is the shining of Jerry Jones' alien face when he takes his fake skin off. Like in "Cocoon," except with way less Steve Guttenberg

So, no, I don't buy that one fucking bit. And even if I was inclined to believe that owners were seriously hampered by the latest CBA, the place to make that argument is at the negotiating table, with hard facts to support that claim. Because, honestly, all I see is the dollar signs and I want to punch someone in the throat.

Which brings me to perhaps my most central point about the owners - they've been complaining about this shit since the last CBA extension was signed in 2006. WHY FUCKING SIGN IT THEN? My guess is that they did so because there was money to be made, and where there's money to be made, there's an incentive to invest. If owners are running at losses, that's one thing, but most of these guys are independently wealthy and basically chose to own a team because it seemed like an awesome and fun thing to do. And, frankly, from what I've heard from those speaking out of the NFLPA, the owners never even went so far as to show the union any records that might demonstrate the financial difficulties they described or that further investment in the league has really ever been in doubt.

Incidentally, the owners arguments are the same ones we've been hearing from most sectors of the super-rich American upper class: the current system governing Industry X doesn't give the wealthy enough of a return on their investment to make further investment worth it, and that unless we all (through our government, often) agree to redefine the basic rules of Industry X, those dollars of investment will be picked up and taken elsewhere. This risk of capital flight acts as effectively as a knife to our throats, but is rarely if ever backed up with actual evidence that the current system - whether it be the tax code or a set of "oppressive" environmental regulations - is actually a threat to sustainable growth and investment in the particular industry. Yet, even though we're not given evidence and we're often given little else than a spoiled over-sized rich kid complaining that he wants more and he wants it now, we so fear losing those rich kid dollars that we cave in and reach a new agreement to give more - more tax breaks, more exemptions from regulations. And then, a few years later, when that new status quo is attacked with an eerily similar set of threats, it is likely that we, collectively, won't notice that we're being duped all over again.

Given the parallels to American big business and the crock of shit that corporate barons have been shoving down our throats, it is really hard for me to not side with the players. The owners CHOSE to end the CBA early, and they CHOSE to lock the players out. In doing so, they sharpened the knife against the throat of the players. But, rather than just mindlessly cave at the threat, the players are fighting back - if only to demand the common decency of being allowed to see the actual evidence supporting the NFL's position. The NFLPA's decision to decertify the union, which the owners are branding a "sham" within the pending appeal in the Eighth Circuit, was a last-ditch effort to re-balance the bargaining positions. Once decertified, the players had an opportunity - pending the Court's forthcoming decision - to get the Court's assistance in stopping the lockout and, in essence, putting the owners back in their place. And, in the meantime, as the sides continue to negotiate a new CBA, the unresolved and fundamental legal questions of whether the courts can even get involved in stopping the lockout remain a useful weapon for the players, if only because those questions mean that the NFL can't simply bank on a continued lockout.

Of course, this begs the question - what if the court makes its decision before the sides have reached an agreement? Well, if the players; argument wins the day and they get their injunction (stopping the lockout), the bargaining table will be an even playing field again. If the owners succeed in their argument that the court doesn't have the jurisdiction to issue an injunction in this labor dispute, the players may have no other choice but to bend to the owners' whims or just accept the lockout and ditch the season. And if the NFL continues in its absurd refusal to succinctly lay out its argument for a new CBA, and continues unwilling to give in to player demands about compensation for an extra two regular season games and revenue set aside for long-term player health care, the players may honestly have no choice but to balk from the bargaining table. Such a move if not good for anyone - except maybe the NHL - though it still may be better than the alternative.

But, clearly, what the hell do I know? I'm just a fan, and I like players - not owners. (Except T-Pegs. I Love you Terry!!) However this plays out, I just hope that our heroes get a fair deal, and that they aren't afraid to bust some heads to get there.

good article. You don't see the owners selling or going bankrupt so, to me, their complaints ring hollow. What do they do anyway? Show up at the games and hire a GM. Nice work if you can get it.

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Andrew

6/12/2011 02:17:41 am

The rich owners (who presumably came into their wealth by nefarious means) are evil and the long-suffering players are the heroic victims. And, of course, all of this is beautifully confirmed through unrestrained use of the word "fuck" - apparently for emphasis.

(NB: If you drop an "f bomb" once under exceptional circumstances in quasi-humorous context, it goes a lot further. Otherwise, you make the rest of us in the legal profession, a once dignified occupation, look like a pack of vulgarians.)

Well let me spell out what would happen to the NFL the way you want it. Your crying that the NFL players are being salary cap strifed and will not make a proper wage due to the power hungry owners. In the real world companies owned by single ownership can pay their employees whatever they want. They are only held by competition rules that allow all employees to move to different jobs for slightly a better wage or living conditions. The modern day NFL doesn't have to worry about any of this for their players because most of them with a little luck make a million bucks after 3-4 years of their lives. If they are better than average, that amount starts driving up immensly. Now lets see, who is the players name on the case against the NFL, Tom Brady. That is what the players are using as questioning the leagues anti-trust rules? Tom Brady was a 6th round pick that got a chance to play on a team that was made pretty good because of anti-trust exemptions. He has made 100's of millions of dollars playing a sport he is in the top 2% of income. Where is the equality. If Tom Brady went into a system with total freeagency before he became a star he never would have played a game as a starter or if he did it would be on a crappy team and his skills would have been worthless. He was not a big name out of college and a fair market place would have ignored him.

So let us take a market place in the NFL that has totally free competition and all players can sign where they like out of school. There are probably 2000 signed NFL players with about 2000 new players wanting jobs every year. Out of 32 teams their will be maybe 8-10 good teams with real money. In order for the the other teams and TV market to make revenue more games, say 20, will need to be played for ticket revenue. Rosters will go to maybe 100 players each just to get through a season. The good teams will hoard all the best names out of college save a few that want to play for a home team. Most games would become competely meaningless which would mean TV revenues would go way down except for a few teams that strike their own deals or own their own TV stations, ie.. the Yankees. 20 some teams that now have 100 million payroles now would drop to 50 million or less and would really never compete. Intially maybe a 1000 players might average over a million a year but most players say 2000 will never see a million dollars and would average less then 2 years on a team due to injuries with more games and unequal competition causing injuries during games with much better teams. For those 20 teams contracts would average less then 2 years because they would be guarenteed. Within 5 years the NFL would go from 32 teams to 20 or less. Half the country would care less about football because their team would never have a chance. I am a Bills fan and know my team would never survive, I will enjoy NHL hockey that much more instead.

So you think the owners are screwing over the modern day player who make millions and allow for a market place that is pretty even in terms of jobs available. Then I say to you FUCK YOU and leave the game alone or there will be a NFL in place that few people say 10 cities will even want to watch.

Right off the bat - good comments folks. Except you, Scizz. You're just childish.

@Andrew, my use of the f-bomb is a product of genuine rage, as well as a symptom of working on this post during late nights and having little time to edit. I'd apologize if I really thought that I was bringing down the profession. But, having met many lawyers whose professional ethics are shockingly lacking, I'm not going to get all worked up about things I say in a personal capacity on a sports blog.

@Michael, great points, and honestly I never meant to argue that a free market system for player contracts was appropriate. I actually salary caps and drafts make for a sustainable system, as you point out so well. My point was only that the decision to lock the opt out of the CBA and lock the players out was - to me - a stupid and callous move. It illustrates a disregard for the interdependence between owners and players. Moreover, I bring up two points: (1) the players were not the ones asking for more money, the owners are, and (2) the owners were asking for a higher share at the same time they're lobbying for a longer season. You say leave the NFL alone, but that's exactly my point: the owners are trying to tinker with revenue sharing and season length. They are the ones who have pulled the plug.

But, you're absolutely right. FUCK ME. If for nothing else other than being less than clear in my thoughts so they weren't completely misunderstood on a lazy Sunday afternoon.

btw, apologies for typos in my comment just now. Working off my phone at the moment and I have disturbingly chubby thumbs.

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The Yachtsman

6/12/2011 02:20:49 pm

Andrew & The Barrister:

At no time in human history has anyone aside from lawyers themselves viewed the law profession as dignified.

Mr. Trifonoff:

Your disregard for what is an incredibly ruthless meritocracy with respect to NFL Rosters (See: Tom Brady argument) is questionable. So fair play practices set Tom Brady onto the field? I say whack-a-mole, sir.

Also, I think we all need to examine the unspoken point: the fucking owners are quibbling about paying into a system which would take care of the former players who built the goddamn league to what it is today. Only journalists and media wonks masturbate Pete Rozelle and Lamar Hunt. Everyone else looks to the Steel Curtain, The Electric Company, America's Team, etc. They built the league. Give it back. Act like a human being.